Law of Wills, 2016A

executed. All other evidence concerning the testator’s mental capacity before or after the time of
execution is only an aid in deciding the issue. In re Estates of Barnes, 218 Kan. 275, 281, 543 P.2d 1004
(1975).
“The test of a testamentary capacity is not whether a person has capacity to enter into a complex
contract or to engage in intricate business transactions nor is absolute soundness of mind the real
test of such capacity. The established rule is that one who is able to understand what property he
has, how he wants it to go at his death and who are the natural objects of his bounty is competent
to make a will even though he may be feeble in mind and decrepit in body.” In re Estate of Perkins,
210 Kan. at 626, 504 P.2d 564.
The Millers refer to various instances before and after the dates in question as support for their
contention that Oliver lacked testamentary capacity. They further point out that Oliver suffered
from degenerative dementia and did not know the exact amount of money in her bank accounts at
the time she executed her will.
The mere fact that a person suffers from senile dementia does not mean that person lacks
testamentary capacity. In re Estate of Brown, 230 Kan. 726, 730, 640 P.2d 1250 (1982). Here, Steier, the
attorney who drafted the will, and two of his employees were present when Oliver executed the will.
Steier testified that Oliver reviewed the will before signing it and knew to whom she wanted her
property to go at her death. While Oliver was not positive of the exact amount of her cash assets,
she listed her relatives and extensively discussed her personal and real property with Steier. It is
apparent from Steier’s and Holway’s testimony that Oliver knew the general nature of her property
and how she wanted it distributed when she signed the will.
Under the circumstances in this case, the trial court’s findings that Oliver had testamentary capacity
to make the will and to make changes to her certificates of deposit are supported by substantial
competent evidence.
Our examination of the specific claims made by the Millers leads us to the same conclusion as that
of the trial judge.
Affirmed.
Notes, Problems, and Questions
1. The only testamentary capacity that is relevant is the capacity that the testator has at the time the
will is executed. Therefore, someone with a condition that permits them to have lucid periods may
be legally competent to execute a will.
2. Consider the following problem. Tony takes medicine for a chronic illness. One side effect of the
medicine is that Tony has hallucinations. The side effects last for about two hours after Tony takes
the medicine. Tony takes the medicine every morning at about nine. One of the main hallucinations
that Tony has is that his daughter, Barbara, is really his mother, Claire. Tony’s mother has been dead
for about twenty-years and they had a strained relationship. One morning, Tony contacted his
lawyer and stated that he wanted to change his will so that his mother would not inherit any of his
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